MSC to consider COA’s conflict ruling in Waterstone case

What a mess.
Back in 2005, when Mary Waterstone was still a Wayne County Circuit Court judge, the Wayne County prosecutor's office charged Alexander Aceval with narcotics trafficking and took the matter to trial.
Waterstone presided. Karen Plants handled the prosecution. The jury deadlocked. A new trial was scheduled for June 1, 2006.
But before his retrial, Aceval ...

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THE MICHIGAN SUPREME COURT’S NEW DISQUALIFICATION RULE:
SMOOTH SAILING ON THE WINDS OF “TRANSPARENCY” AND “PROGRESS”
OR “UNCONSTITUTIONALITY MAELSTROM” AHEAD?

By: David L. Moffitt*

On November 25, 2009, the Michigan Supreme Court, for the first time since the inception of statehood, adopted its arguably first [1] written rule specifying procedures for the disqualification of its own justices, in the form of amendments to MCR 2.003, that formerly appeared to apply by its terms to all jurists except justices. The already deep divisions in the court particularly evident in the past year were dramatically intensified, with the majority claiming progress and transparency in the adoption of the amendments, and the minority side of the 4-3 vote darkly branding the initiative as a sudden, unexplained play for advantage unconstitutionally threatening the court’s traditional operation and ultimately, perhaps, its very case-by-case decisional membership.

This article reviews significant positions of the justices on the amendments, discusses the only interpretive case handed down to date, evaluates the potential for further amendment, considers prospective interpretation by the sole undecided case seeking disqualification under the new provisions, and reviews the potential practical consequences of actual implementation of the amendments.

Prior Practice. Michigan’s high court generally adhered to a unwritten practice similar to that of the United States Supreme Court, where the challenged justice alone made the decision whether recusal was appropriate, on a “actual bias” standard, with no review or vote by other justices regarding that unilateral decision permitted; the only review was to the U.S. Supreme Court. This procedure was stated by the minority to have been in effect for some 173 years. The existing court rule for disqualification did not expressly apply to justices.

The Amendments. The amendments, formally proposed and moved for adoption by Justice Hathaway, and supported by Justices Cavanagh, Weaver, and Chief Justice Kelly, were actually adopted November 5, 2009 “with immediate effect,” but remained unavailable to the public in written order form until the day before Thanksgiving. Important provisions included that the rule would apply to the justices themselves [2], allowed the disqualification of a justice to be raised by another justice[3], established the “appearance of impropriety” as a ground for disqualification of any judge[4], required publication by a challenged justice of the reason for participation or not [5], and, upon motion by a party, permitted decision by the full court of whether a challenged justice should be recused.[6]

The Concurring Justices: “Progress” And “Transparency” Concurring, Justice Cavanagh asserted that there was no reasonable basis that a justice accused of bias regardless of the amount of evidence that he was actually biased should be the only one who decides whether he should be disqualified, except “that we have always done it this way,”and stated the practice was indefensible to the public and “incongruous with reason.” Justice Weaver hailed the change as a “positive historical step forward toward achieving more transparency and fairness in the Michigan Supreme Court.”

Chief Justice Kelly found that the Supreme Court’s decision in Caperton v A.T. Massey Coal Company, Inc.[7]demonstrated that the decision of a justice to recuse one’s self is inherently subjective, that the due process clause requires an objective decision, and that an independent inquiry into in individual justice’s refusal to recuse, that has now been written into the rule, may be necessary to satisfy due process.

The Dissenting Judges: “Constitutional Crisis.” Opposing votes to the amendments were cast by Justices Markman, Corrigan and Young. Justice Corrigan’s dissent characterized the changes as the most important issue she had ever worked on, inflicting a “lacerating wound to this institution,” “eviscerating fundamental freedoms, ” that would “precipitate a constitutional crisis,”and invoked George Orwell’s Animal Farm maxim “that all animals are equal, but some are more equal than others,” in declaring that “only the four justices adopting these rules arrogate to themselves this new, ‘more equal’ dominion over their colleagues.”

Justice Corrigan observed that the to the extent the impetus for amendments included the U.S. Supreme Court’s reversal in Caperton of a Pennsylvania Supreme Court Justice’s refusal to recuse himself despite massive campaign contributions received from a pending litigant, that decision changed only the standard for recusal, not the identity, of the decision maker of the recusal decision.

Interpreting the amendments as potentially allowing “removal of a justice” from office, she deemed them contrary to the state constitution, which authorizes removal only by impeachment [8], state joint-legislative declaration by two-thirds vote on reasonable cause, [9], or by the Court itself upon recommendation by the Judicial Tenure Commission.[10], and contrary to the federal constitution, as detailed in Justice Young’s dissent.

Justice Young declared the amendments denied First Amendment constitutional protections to judicial campaign speech of justices of the court itself, and advocated further amendments affording to challenged justices the right to counsel, the right to file a brief, and the right to an evidentiary hearing on material issues. Although due process demands the right to challenge bias of those voting on another justice’s recusal refusal, the new procedure in his view lacked any provision for such review. The results of a March 11, 2010 further administrative meeting on related agenda items including Justice Young’s proposed amendments were not available at publication. Informed sources suggest that these amendments were not adopted, but that a presently unspecified amendment to the time for filing [11] of recusal challenges proposed by a member of the prevailing side was adopted.

Interpretive Case Law: Pellegrino–Political Speech As Evidence Of Bias Or The Appearance of Impropriety. Two cases before the court in which recusal is sought may shape future interpretation of the amended rule, Pellegrino v Ampco Systems [12], a just-decided challenge by the Feiger law firm in a civil case to alleged bias on the part of Justices Markman, Young and Corrigan, referencing political speech as evidence of actual bias, and People v Alexander Aceval[13], a criminal case, seeking recusal of Justice Hathaway on rehearing on an actual bias and appearance of impropriety standard in the context of alleged personal ties to the pending cause.

The Pellegrino recusal challenge was filed before the amendment were adopted and alleged that various statements made by Justices Young, Corrigan, and Markman in the course of political campaigns and public addresses demonstrated personal bias against the Feiger firm. Justices Young and Corrigan filed their responses November 18, 2009, after the “effective date” of the amendments but before the Order was available November 25, 2009. They asserted the applicability of the prior practice, disclaimed actual prejudice or bias, and declined to recuse themselves, seemingly avoiding full court review of their respective unilateral decisions
.
Justice Markman’s decision not to disqualify himself, made after the amendments,
required issuance of a detailed statement in support. He noted that he had decided numerous decisions in the moving firms’s favor since making the questioned remarks during the pendency of Mr. Feiger’s 1990 gubernatorial campaign, and that he had ruled favorably in the past for causes for which he had little personal regard, and unfavorably for causes for which he had considerable personal regard. .

His decision was subject, upon motion by the plaintiff, to a full court vote. In upholding his decision, Justices Kelly and Cavanagh noted the “staleness” of the remarks made over ten years ago, and Justices Weaver and Hathaway, concurring, held that the appearance of impropriety standard would not be retroactively applied to statements made by a justice concerning a party or a party’s attorney prior to the rule’s amendment, but that the standard would be prospectively applied to statements made after the effective date of the amendments. No rehearing was sought.

Prospective Interpretive Case Law: Aceval–Judicial Relationships, Bias And The Appearance of Impropriety. The grounds for recusal in the remaining unresolved disqualification motion before the court, People v Aceval, are more complex. A first trial, now admitted by the trial judge, prosecutor and two principal police officers to have been perjured practically from beginning to end, ended in mistrial. It was retried, in violation of due process and double jeopardy safeguards, according to defendant Aceval, in part upon the testimony for the prosecution by the officers and the involved judge attempting to explain and excuse their perjurious conduct in the first trial. Aceval plead soon after one of his retained attorneys was ejected from the case. The trial judge, prosecutor, and officers were subsequently criminally charged, not by the involved prosecutor’s office, but three years later by the Michigan Attorney General regarding their perjury at the first trial. Confidential interviews were conducted by the Attorney Grievance Commission and the Attorney General of the involved judge, the police, and the involved prosecutor’s top staff members.

The Michigan Supreme Court effectively denied Aceval’s leave to appeal his conviction on a 3-3 vote, with Justice Corrigan recusing herself to be a potential witness in “a related case. ” Newspaper investigation elicited that the “related case” testimony was to be as a character witness on behalf of all of the accused trial judge. Also denied was a defense motion to compel the production of the confidential interviews which Aceval alleged revealed the full extent of suppression of the scheme in the prosecutor’s office, implicated the highest level of the prosecutor’s staff, and proved the re-trial was similarly perjured and obstructed. Aceval sought rehearing of both application and motion, and moved to recuse Justice Hathaway from the rehearings, alleging that the interviews the court refused to order be disclosed included that of her ex-husband, the chief assistant in the involved prosecutor’s office, who was stated in a Attorney General summary of the confidential interviews to have been, at some point, aware of the perjury, and that her vote to deny disclosure of the interviews was in reality a vote shielding her ex-husband’s supervisory actions, and his colleagues, from further scrutiny in the case.

The motion to disqualify further alleged that Justice Hathaway was at the time a judge in the same circuit and division where the perjury trials took place, under considerable media coverage, and that she and other circuit judges there situated failed: (1) To report or question the misconduct; (2) To raise the impropriety of the involved judge, still uncharged, testifying in the re-trial, before a judge of their same circuit and division, as a prosecution witness regarding her purported justification for actively allowing and concealing from the defense the perjury in the first trial; (3) To raise the impropriety of that judge continuing to sit and hear cases in that circuit and division; (4)To raise the impropriety of the obvious conflict of interest of the involved prosecutors’s office in re-trying that case, once transcripts (made by the involved judge and prosecutor in-camera regarding their operation of the perjury scheme) surfaced, in that same circuit and division, all demonstrative, the motion alleged, of actual and figuratively “incestuous” bias amounting to a “culture of judicial protectionism” in favor of both the involved, testifying judge and the involved prosecutor’s office.

In the re-trial the retained attorney that had discovered the alleged perjury scheme was sua sponte ejected from the re-trial on the pretext that his “limited appearance”(for pretrial motions and interlocutory appeal, not trial)(specifically authorized by written order of the involved judge prior to the first trial) were prohibited in that circuit and division by a prior, explicit Supreme Court directive. The motion to disqualify alleged that Justice Hathaway not only had personal knowledge of whether or not there existed any such directive to that circuit and division, which the Supreme Court’s staff had acknowledged could not be located if it ever existed, but that actual bias stemming from personal involvement in that division and circuit caused misapplication of that knowledge in her denying appellate review of the ejection on Sixth Amendment denial of counsel grounds.

The ejection, moreover, took place on the very day that additional disclosures were demanded by counsel from the prosecutor of every person in the prosecutor’s office who had known of the first trial perjury, of what “deal” had been approved for the testifying judge, and why she and the officers were not being criminally charged (before testifying, enhancing their credibility as prosecution re-trial witnesses ) by that very prosecutor’s office (on the basis of the self-incriminating testimony each would be offering in re-trial), a situation that could only have been pre-approved at the highest level, e.g. the chief assistant prosecutor, Justice Hathaway’s ex-husband. If not demonstrative of actual bias, the motion continued, the appearance of impropriety was sufficient for Justice Hathaway’s recusal from any rehearing of the application, particularly on that issue, and rehearing of the motion to disclose the ex-spouse’s/chief assistant prosecutor’s AGC and AG interviews.

The disqualification motion and rehearing were filed October 16, 2009, and a stay of proceedings was sought on the latter until the disqualification is decided. The Supplemental Affidavit in support of disqualification invites the challenged justice to make “a bold and magnanimous gesture in the defense of the moral and ethical outer boundaries of the newly revised disqualification rule proposed by the Justice herself.” No response from Justice Hathaway under the new procedure has yet been filed.

Conclusion. The newly granted power of a majority to disqualify one or more of their colleagues against their decision otherwise is simultaneously praised as the long-awaited reform needed to ensure that an actually biased justice does not unilaterally thwart disqualification, and vilified as a tool to disenfranchise the voters’ electoral choice and as the trigger of an impending constitutional crisis.

It is unclear whether a challenged Justice could effectively thwart the a challenge by similarly challenging for recusal one or more of the remaining justices, whether an actual disqualification of a sitting Justice would be appealed by the challenged Justice himself, and to whom, and whether such challenges and appeals of challenges could be accomplished in a time frame that did not bring the cases, or worse, the classes or categories of cases, to an impractically lengthy halt.

There is little doubt that the number of such challenges will increase, as appellate practitioners indulge the new opportunity to test progressively ingenious strategic disqualification tactics, and devise novel efforts to divide, pick, and choose between the justices in development of a special issue-by-issue judicial constituency, based upon judicial philosophy, political sympathy, and vulnerability to ever-enlarging categories of potential “appearances of impropriety.”

In applying the new language, the court let bygones be bygones for Justice Markman in Pellegrino, but appears to be ready to actively police future political speech under the largely undefined ‘impropriety” standard. Whether the stated promulgator of the amendments, Justice Hathaway, will find an equally benign reception from her newly incensed dissenting colleagues in defining the new standard in the more complicated personal factual scenario of Aceval, or whether the majority will side step the challenge on procedural grounds or a tersely unenlightening fiat, remains to be shortly seen.

Future rule changes with additional consequences may not be far off. Chief Justice Kelly
stated at the November 5, 2009 meeting that the “question of when financial contributions to sitting justices constitute the appearance of bias or the probability of bias such as to require disqualification” was “an important matter that has to be addressed.” Justice Weaver has long insisted on her website that the Michigan Constitution permits the appointment of a temporary “replacement justice” where another justice is disqualified [14]. Just such a motion, to appoint a temporary Justice in the absence of the already disqualified Justice Corrigan in Aceval, is already pending, as is, consistent with the advent of “transparency” cited in support of the amendments, a motion in the same case seeking disclosure of the circumstances of her recusal to testify on behalf of the involved, accused judge.

The widely divergent views of the justices on the content, interpretation, and application of the amendments portend difficult days ahead for a court likened by former Justice Thomas Giles Kavanagh to “seven people in a boat upon stormy seas;” wags have suggested the four horsemen of the sea, mutiny, shipwreck, piracy and maelstrom, should be figuratively considered part of the court’s future seascape. Perhaps added to the metaphor should be, like a crew’s shore-bound family anxiously gazing out to sea, that the practicing bar and public can only hope the competitive, high-stakes maneuvering in that beleaguered vessel does not cast overboard its precious cargo, their right to fair, unbiased, and final decision-making on the merits according to law.

END NOTES

[1] Johnson v Henry Ford Hospital, 477 Mich 1098 (2007)(“MCR 2.003. . . has never been held applicable to disqualification of Justices.”); but see Weaver, J.,concurring/dissenting opinion, “[I]n Adair v. Michigan, 474 Mich. 1027, 1043, 709 N.W.2d 567 (2006), Chief Justice Taylor and Justice Markman stated that “[p]ursuant to MCR 2.003(B)(6), we would each disqualify ourselves if our respective spouses were participating as lawyers in this case, or if any of the other requirements of this court rule were not satisfied.” Justice Young concurred fully in this legal analysis. Id. at 1053.”Id.

“Art 6, § 23 is the constitutional authority that allows, but does not require, the Supreme Court, as it has done in the past and continues to do so today, to “authorize persons who have been elected and served as judges [i.e., current and retired trial judges, Court of Appeals judges, and Supreme Court Justices who have been elected and served as judges] to perform judicial duties for limited periods or specific assignments” in the trial courts and the Court of Appeals when illness, disqualification, recusal, or other temporary occurrence or need prevents judicial duties from being performed by trial or Court of Appeals judges.”

*David L. Moffitt, of the Law Offices of David L. Moffitt & Associates, specializes in civil and criminal trial and appellate litigation, and is a member of the SBM Litigation Section Council and Prisons And Corrections Section Council. A former county and state elected official, he is a past recipient of SEMCOG’s Taubman Fellowship, and the Thomas M. Cooley Law School’s “Most Distinguished Brief To The Michigan Supreme Court” Award.

Thanks for your comment, in particular, for providing some additional context about the Waterstone matter.

The closing paragraph of your comment is worth repeating:

“The widely divergent views of the justices on the content, interpretation, and application of the amendments portend difficult days ahead for a court likened by former Justice Thomas Giles Kavanagh to ‘seven people in a boat upon stormy seas;’ wags have suggested the four horsemen of the sea, mutiny, shipwreck, piracy and maelstrom, should be figuratively considered part of the court’s future seascape. Perhaps added to the metaphor should be, like a crew’s shore-bound family anxiously gazing out to sea, that the practicing bar and public can only hope the competitive, high-stakes maneuvering in that beleaguered vessel does not cast overboard its precious cargo, their right to fair, unbiased, and final decision-making on the merits according to law.”

The foregoing article,all rights reserved, is reprinted with the consent of the author from the most current SBM Litigation Section Newsletter, Spring, 2010 issue, Dari Craven Bargi,Esq., Editor In Chief.

The author is the attorney on appeal for Mr. Aceval.

Case documents, including the revealed ex-parte transcripts, and briefs fully detailing the underlying facts of what may be the nation’s first and best-proven instance of an alleged vertically-integrated judge-prosecutor-police perjury conspiracy, and the Michigan legal system’s reluctance and utter unpreparedness to objectively confront it, are compiled at davidlmoffitt.com.

It is only through the willingness of the media to publicize this matter, such as through the information portal graciously provided by Lawyers Weekly here, that the matter has avoided being swept under the rug, even at this stage.